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[2011] ZAECPEHC 43
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Paterson obo Nwana and Another v Road Accident Fund (579/09) [2011] ZAECPEHC 43 (27 October 2011)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
CASE NO.: 579/09
In the matter between:
ADVOCATE NEIL MUIR
PATERSON N.O.
obo BAMBILE NZWANA
….....................................................
FIRST
PLAINTIFF
FEDERATED EMPLOYER’S
MUTUAL
ASSURANCE COMPANY
LIMITED
…................................
SECOND
PLAINTIFF
And
ROAD ACCIDENT FUND
….............................................................
DEFENDANT
JUDGMENT
BESHE, J:
[1] All other heads under
which damages are claimed having been resolved between the parties,
what remains is the determination
of the quantum of general damages
that the first plaintiff, in his capacity as the
curator ad litem
of Mr Banbile Nzwana (the patient) should be awarded.
[2] First plaintiff’s
claim is for an award in the amount of R1 000-000-00 in respect of
general damages arising out of the
injuries and sequelae suffered by
Mr Nzwana as a result of a collision that occurred on the 27
th
of June 2006, near 6
th
Avenue, Walmer, Port Eizabeth.
[3] Mr Nzwana was on duty
as a pipe layer working for Rand Pave EP (Pty) Ltd, Port Elizabeth.
He was knocked down by the insured
motor vehicle. He was then
transported by ambulance to St Georges Hospital, Port Elizabeth.
[4] The nature and extent
of the injuries sustained by Mr Nzwana does not seem to be in dispute
and are those listed in the particulars
of claim and confirmed in the
various expert reports that were by and large handed in by agreement
between the parties, as being;
Fracture of the left
femur shaft, a plateau fracture of the knee and a closed brain injury
with a left sided pontine haemorrhage.
His Glasgow scale rating
was recorded as 8/15 on admission to St Georges Hospital.
[5] Mr Nzwana’s
femur fracture was managed and he underwent an open reduction and
internal fixation with intra modularly interlocking
nail. His plateau
fracture of the left knee was treated conservatively and a hinged
knee brace was used.
[6] He was treated for
his head injury by Dr G P Greef a neurosurgeon.
[7] Mr Nzwana was also
treated at Aurora Hospital where he was admitted on the 11
th
of July 2006 and discharged on the 25
th
of August 2006.
[8] The nature, extent
and effect of his injuries are set out in the experts’ reports
to be as follows:
[9] According to Dr Basil
Mackenzie, an orthopaedic surgeon, when he first examined Mr Nzwana
in April of 2008, he was using a wheelchair.
When he examined him
again in August of 2009 he was independently ambulant using two elbow
crutches and wearing a knee brace on
the left side. This was still
the case when Mr Nzwana presented himself to court in December 2010.
Commenting on the effect of
injuries on occupational and social
activities, Dr Mackenzie remarked that Mr Nzwana has not resumed any
form of work and remains
independent in respect of dressing, eating,
attention and to personal hygiene. And that as a result of his
polytrauma he would
have suffered very severe pain. There would have
been a severe exacerbation of pain when he underwent open reduction
and internal
stabilization of his left femur fracture. That his pain
has persisted due to the non-union of his femur fracture and the
encroachment
of the intramedullary rod into his knee joint.
[10] Dr Mackenzie’s
observations are also largely confirmed by Dr Swart, also an
orthopaedic surgeon. Dr Swart also noted
gross instability and
shortening of the leg and swelling of Mr Nzwana’s left knee.
[11] In his third report
that he compiled after examining Mr Nzwana in December 2010, Dr
Mackenzie remarked that Mr Nzwana’s
limb length inequality has
increased and his general and left lower limb condition has
deteriorated and that his femur is yet to
unite and there is a
probability that within the next ten years Mr Nzwana will develop
secondary osteo arthritis of his left knee
severe enough to warrant a
total knee joint replacement arthro plasty.
[12] It appears from
neurologist Dr G P Greef’s report that Mr Nzwana’s
prognosis is poor for any significant improvement
in his cognitive
abilities, social and occupational functioning. Dr Greef is also of
the view that there is not likely to be any
treatment that would
improve his cognitive or social functioning. He concluded that Mr
Nzwana’a amenities of life have been
severely impacted. His
identity as a provider for the family and his children’s
education has been affected because of not
being able to work after
the accident. He also had to change living environments because of
not being able to afford to live in
the house he owned before the
accident.
[13] According to Dr K P
Swart’s statutory medical report Mr Nzwana suffered a fairly
severe head injury and severe lower
limb injury.
[14] Mr Mark Eaton, a
Clinical Psychologist also opined that Mr Nzwana sustained a
traumatic brain injury of a severe degree. During
consultation with
Mr Eaton, Mr Nzwana reported that if he is given any new information,
he forgets it within a few minutes whereas
this was not the case
prior to the accident. He does not do shopping anymore because he
forgets the necessary items. His forgetfulness
distresses him.
It is a feature of the
case that as a result of the injuries sustained by the plaintiff he
now requires curators to manage his affairs.
[15] It is on the basis
of the above-mentioned injuries that the amount to be awarded to the
first plaintiff in respect of general
damages will be determined.
[16]
Mr Frost
for
the first plaintiff submitted that first plaintiff was entitled to an
award for R1 000-000-00 for general damages and referred
me to a
number of earlier cases which he contended were comparative to the
present case.
[17]
Mr Dala
for
the defendant contended that an award between R450 000-00 to R500
000-00 will be reasonable and drew the court’s attention
to
various cases that were decided earlier for guidance.
[18] He argued that Mr
Nzwana’s injuries were not of a very serious nature than in
some of the cases referred to by counsel
and urged the court to
decide the matter on the basis of its own peculiar facts. I will
consider the awards that were made in these
decisions in the light of
the injuries sustained by Mr Nzwana, appreciating that differences
will arise in each case.
[19] I will also be
mindful of what
Watermeyer J
said in
Sandler v Wholesale
Coal Supplies Ltd
1941 AD 194
at 199
namely that:
“… … …
it
must be recognized that though the law attempt to repair the wrong
done to a sufferer who has received personal injuries in an
accident
by compensating him in money, yet there are no scales by which pain
and suffering can be measured, and there is no relationship
between
pain and money which makes it possible to express the one in terms of
the other with any approach to certainty. The amount
to be awarded as
compensation can only be determined by the broadest general
considerations and the figure arrived at must necessarily
be
uncertain, depending upon the judge’s view of what is fair in
all the circumstances of the case.”
[20] I have considered
the cases that I have been referred to by counsel as well as other
cases. As could be expected the injuries
suffered by plaintiffs and
their consequences in those cases are either less severe in some or
more severe in other. The personal
circumstances of the plaintiffs in
those cases were also different to those of Mr Nzwana.
[21]
One such case is that of
Hurter v Road
Accident Fund and Another Case number 367/07 [2010] (2 February 2010)
an unreported decision by
Plasket
J.
The plaintiff in that case was 20 years
old at the time of the accident. She sustained serious injuries,
which rendered her unconscious
for 10 days. Suffered from retrograde
and post-traumatic amnesia. Had to undergo plastic surgery to
reconstruct her nose and nasal
septum. She also suffered from left
sided visual field defect as a result of trauma to the brain. An
amount of R500 000-00 was
awarded for general damages.
[22]
In
Daniel Andrè Jansen and Another v
Road Accident Fund Case Number 1737/09
(unreported)
Eksteen J
awarded R450
000-00 for general damages. In this case the plaintiff, a 24-year-old
man sustained a severe closed head injury as
well as certain
orthopaedic injuries.
[23] I have also
considered awards for general damages that were given in the
following cases:
Mzendane v Road Accident Fund [2008] JOC 22081
Ck; Donough v Road Accident Fund [2010] JOC 26413 (GSJ); Tyrone Kapp
v Road Accident
Fund [Case Number 1432/ 08] ECPE
.
Having considered the
awards made in those and other cases not mentioned in this judgment,
and in the light of the injuries sustained
by Mr Nzwana and their
consequences, my view is that an award of R600 000-00 for general
damages will be appropriate in the circumstances.
[24] Judgment is
accordingly granted in favour of the first plaintiff against the
defendant for:
Payment in the sum of
R600 000-00 as and for general damages.
Should the capital
amount in paragraph 1 above not be paid within 14 days from the date
of this order, defendant shall be liable
for payment of interest on
the said capital calculated at the legal rate of 15.5% per annum as
from the due date until the date
of payment.
Defendant shall pay
first plaintiff costs of suit, as taxed on a party and party scale
together with interest thereon at the legal
rate of 15.5% per annum
as from the date of (14) fourteen days after taxation or agreement.
Such costs to include:
Attending to a
necessary inspection
in loco
at the scene of the collision
with counsel.
Key and photographs.
Key and plan.
The qualifying
expenses, if any, of the following expert witnesses:
Dr S Basson
Dr H Kritzinger
Dr R D D Campbell
Dr G P Greef
Dr K P Swart
Dr J Parsons
Dr B L Mackenzie
Dr P Pretorius
Mrs A van Zyl
Dr P Swart
Mr M Eaton
Dr H J van Daalen
Mr D Williams
Dr A Ahmed
Mr P Stunden
Mr Olivier
Reserved cost of 3
August 2010
Costs of the
curator
ad litem.
The costs of the
curator bonis
as prescribed in terms of
section 17(4)(a)
of
the
Road Accident Fund Act 56 of 1996
.
_______________
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For Plaintiff(s) ADV: A Frost
Instructed by G P VAN RHYN MINNAAR INC
& CO /
ROELOFSE MEYER INC.
29 Bird Street
Central
PORT ELIZABETH
Tel.: 041 – 585 3270
(Ref. Lunen Meyer/HN/N360)
(C T A Minnaar - 041- 922 9124)
For Respondent ADV: I Dala
Instructed by BOQWANA LOON &
CONNELLAN
4 Cape Road
PORT ELIZABETH
Tel.: 041 – 582 4361
(Ref.: Mr Armoed/JR/K45542)
Date Heard 9 to10 December 2010
Date Reserved 10 December 2010
Date
Delivered 27 October 2011